AXIS BANK Vs. BALBIR SINGH AND OTHERS

JUDGEMENT

(1.) The present petition under Section 482 of the Code of Criminal Procedure has been directed against orders dated 6.1.2010 (Annexure P-2) and 17.8.2010 (Annexure P-4) passed by the trial court whereby the complaint filed by the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (in short "the Act") was dismissed.

(2.) Axis Bank Limited through its authorised representative filed the complaint in regard to dishonour of cheque allegedly issued by the respondent in discharge of his legally enforceable liability. The complaint was filed in the year 2008 and after conducting preliminary enquiry, the accused were ordered to be summoned. On 6.1.2010, as neither the complainant nor his counsel was present in the Court, the same was dismissed for want of prosecution. The application filed by the complainant for restoration of the complaint also came to be dismissed by the court vide order dated 17.8.2010.

(3.) Counsel for the petitioner contends that on 6.1.2010, the date on which the complaint was dismissed for want of prosecution, the case was fixed for securing presence of the accused through non-bailable warrants. It is further argued that on 30.7.2009, the complainant and his counsel wrongly noted the date as 16.1.2010 and for that reason neither the complainant nor his counsel appeared in the court resulting in termination of the proceedings which has caused serious prejudice to the rights of the complainant and enured to the benefit of the accused who had been avoiding process issued by the Court. It is further submitted that the learned trial court has not adverted if presence of the complainant on 6.1.2010 was necessary for progress in proceedings or could be dispensed with. It is further argued that keeping in view the principle of natural justice that no one should be condemned unheard coupled with the factum that the entire effort of the complainant to bring the proceedings to its logical end would be rendered negatory in case the impugned orders are not set aside, the petition may be allowed and the trial court may be directed to conduct the proceedings from the stage, the complaint was ordered to be dismissed.